Disposed

Ramappa S/O Mallappa Kabbin v. Siddalingappa Adivappa Chinagudi

Karnataka HC16 Mar 2017WP/113927/2015

Case brief

AI extract

What is this about?

A writ petitioner challenged an order allowing delivery of possession in execution proceedings. The High Court held that while the second appeal allowed execution, the operative part restored the trial court decree granting partition and possession, rendering the leave to file fresh suit inexecutable. The petition was disposed of accordingly.

What did the court decide?

The writ petition was disposed of by holding that the trial court decree granting partition and possession stands restored with full effect.

Ramappa S/O Mallappa Kabbin Vs Siddalingappa Adivappa… — Property and Title | Karnataka HC (2017)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 16^TH DAY OF MARCH, 2017

¶4

BEFORE

¶5

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

¶6

Writ Petition No.113927/2015 (GM-CPC)

¶7

Between:

¶8

Ramappa S/O Mallappa Kabbin Age:72 Years, Occ: Agriculture, Resident of :Akki Oni, Savadatti, District: Belagavi.

¶9

... Petitioner

¶10

(By Sri. Laxman T Mantagani, Advocate)

¶11

And:

¶12

Siddalingappa Adivappa Chinagudi Since deceased by legal representatives

¶13

Smt.Gangavva Wife of Siddalingappa Chinagudi Age:81 Years Occupation :Household Work Resident of : Akkioni Savadatti District :Belagavi.

¶14

Smt.Basavannewwa Wife of Basappa Toragal Age:74 Years Occupation :Household Work

¶15

¶16

Resident of: Patil Gali Hubballi

¶17

District :Dharwad.

¶18

Nagappa Son of Siddalingappa Chinagudi Age:68 Years, Occupation :Pensioner Resident of :Annioni Savadatti District :Belagavi.

¶19

Smt.Annapurna Wife of Neelappa Yadal Age:64 Years Occupation :Household Work Resident of: Patil Galli, Hubballi District :Dharwad

¶20

Smt.Shivappa Wife of Siddalingappa Chinagudi Age:62 Years, Occupation :Household Work Resident of : Akki Oni Savadatti District :Belagavi.

¶21

Babu Siddalingappa Chinagudi Since deceased by legal representatives

¶22

Smt.Saubhagya Wife of Babu Chinagudi Age:40 Years Occupation :Household Work Resident of : Akki Oni Savadatti District :Belagavi.

¶23

Kumar S/O Babu Chinagudi Age:25 Years, Occ:Student Resident of : Akki Oni Savadatti District :Belagavi

¶24

Anand S/O Babu Chinagudi Age:23 Years, Occupation :Student

¶25

¶26

Resident of : Akki Oni Savadatti District :Belagavi

¶27

Ishwar Son of Siddalingappa Chinagudi Age:54 Years, Occupation :Business Resident of : Akki Oni Savadatti District :Belagavi

¶28

Shankar Son of Sidalingappa Chinagudi Age:49 Years, Occupation :Service Resident of : Akki Oni Savadatti District :Belagavi

¶29

Rajshekhar Son of Siddalingappa Chinagudi Age:44 Years, Occupation :Business Resident of : Akki Oni Savadatti District :Belagavi

¶30

Gouravva Daughter of Ramappa Kabbin Age:62 Years, Occupation :Household Work Resident of :Akki Oni, Taluk :Savadatti District :Belagavi

¶31

Ishwarappa Mallappa Kabbin Since deceased by legal representatives

¶32

Smt.Shantawwa W/O Ishwarappa Kabbin Age:54 Years, Occ:Household Work R/O:Akki Oni, Savadatti Dist:Belagavi

¶33

Mallappa S/O Ishwarappa Kabbin Age:35 Years, Occ:Nil R/O:Akki Oni, Savadatti Dist:Belagavi

¶34

... Respondents

¶35

¶36

This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the impugned order passed on I.A.No.VI in EP.No.11/2009 dated:23.11.2015, passed by the court of Principal Civil Judge and JMFC Savadatti vide Annexure-F.

¶37

This Writ Petition coming on for orders this day, the court made the following:

¶38

ORDER

¶39

The counsel for the petitioner seeks to retire from the case and has produced an acknowledged intimation of such retirement issued to the petitioner which is dated 16.1.2016. The same is placed on record. The counsel is permitted to retire. The present petition is filed in the following background.

¶40

It transpires that respondent no.1 had filed a suit for declaration that he was the owner of the suit property and for mandatory injunction to remove the well which was constructed, as described in the schedule to the suit. It was decreed by a judgment dated 22.2.1985. That was challenged in appeal before the lower appellate court and the judgment and decree of the trial court was set aside. Challenging that judgment, a Regular Second Appeal was filed before this court.

¶41

¶42

The second appeal was allowed and it transpires that the decreeholder had died during the pendency of the second appeal and the legal representatives of the decree-holder instead of filing a separate suit, according to the petitioner, had filed an execution petition and sought delivery of possession of the properties to which objections had been filed. The said application seeking delivery of possession having been allowed, the present petition is filed to claim that this court in the judgment passed in the second appeal has indicated that a fresh suit ought to be filed and the question whether there was partition or not could be decided afresh and therefore without seeking to file a fresh suit, the application filed in the execution proceedings was misconceived and therefore, the court below could not have allowed the application. However, the operative portion of the judgment of this court in the Regular Second Appeal indicates that the judgment and decree of the First Appellate Court was set aside and the decree of the trial court was restored and therefore the appeal was allowed. It was thereafter observed as follows:

¶43

¶44

“ It is open to the parties to move for partition and possession and the question whether there was really partition or not is to be decided afresh and the finding if any, recorded in the proceedings, shall not bind the parties, in the new proceedings they may institute.”

¶45

Since the judgment and decree of the trial court is restored, the question of filing a fresh suit did not arise. When the judgment and decree of the trial court is restored, it would have to be given full effect, which would entitle the plaintiff to the relief granted namely, for partition and separate possession. Therefore, this court in its appellate jurisdiction also having left the question open as to whether there was partition and separate possession to be decided in yet another suit cannot be reconciled. Therefore, if the judgment and decree of the trial court is restored, that should be given full effect to and the permission granted to institute new proceedings cannot be reconciled with the same. Those latter observations can be

¶46

¶47

safely ignored as the same cannot be reconciled with the judgment and decree of the trial court, which is restored.

¶48

The petition is disposed of in terms as above.

¶49

Sd/JUDGE

¶50

nv/-

Ramappa S/O Mallappa Kabbin v. Siddalingappa Adivappa Chinagudi

Case brief

What is this about?

What did the court decide?

Ramappa S/O Mallappa Kabbin v. Siddalingappa Adivappa Chinagudi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Starship Equity Holding Limited Vs State of Karnataka

Ms Zarin Daruwala Vs the State

Madanlal S/O Mohanlal Mehta Vs Prakash S/O Mohanlal Mehta

Smt.Lakshmawwa Vs Shri.Ramappa

Bhimashi S/O. Kallappa Patharote Vs Saidu S/O.Mahalingappa Patharote

Shankareppa Kallappa Muragod Vs Neelawwa @ Sarojini